In The News

If you can smell it, it can hurt you.

That contention has churned up debate among condominium owners over the right to smoke cigarettes in one's own unit versus a neighbor's right to breathe clean air.

Lawsuits are being filed around the nation, and some attorneys who represent Florida condominium associations say the issue could soon be coming to a court here.

Coral Gables real estate agent Ana Anderson moved out of her Silver Palms condo last month because her neighbors' smoke was seeping into her walls and through her ventilation system. Minimally, Anderson wants to recoup the cost of medical bills, sealing off her apartment from smoke, and wages lost due to illness. She also wants Silver Palms to become a smoke-free building. She said she will sue if she has to and is in the process of hiring attorneys who are well-versed in the issues.

Anderson now lives in the in-law quarters of a house she owns. It is smoke-free and she has control over the environment.

Anderson became physically ill several days after her November move into her new condo. She muscled through her allergic reactions before asking the condo association for help to seal off smoke wafting in from two neighbors' apartments, one next door and one beneath her unit.

Her neighbors at the Dadeland-area complex were sympathetic, and tried to remedy the situation but could not, she said.

They washed down their walls with bleach, but fresh second-hand smoke kept pouring in, according to Anderson. Had her neighbors stopped smoking, the air would have cleared up in a very short while, she said.

"I understand that people have a right to do what they want [in their own homes] but here's the problem: I spent over $2,000 sealing my apartment from smoke," Anderson said.

Condo association members will not reimburse her, Anderson said. Nor will they revise the association documents to prohibit smoking.

Anderson's former attorney, Bart Ostrzenski of Deerfield Beach, sent a certified letter on May 19 to Silver Palms' attorney Robert E. Paige of Miami, outlining Anderson's difficulties and how they could be resolved.

Paige never responded, according to Anderson.

Ostrzenski said that Paige's silence didn't surprise him, but he was taken aback by the complexity of the dispute.

"The issue of smoking in a condominium is a fundamentally difficult and expensive issue for any condominium to tackle. On the one side, the association has a responsibility to protect its owners and residents from nuisances. To nonsmokers, smoking is obviously a nuisance," Ostrzenski said.

"On the other side, there are those who believe that smoking is a personal choice, which should not be regulated by a condominium association, especially when such regulation is imposed upon what you do in your own home. To a smoker, this is a very direct intrusion into their homes."

Silver Palms' board president Tito E. Sanchez declined comment and referred questions to The Continental Group in Hollywood, which manages Silver Palms.

Continental spokeswoman Yra Saab-Tro said her company and Silver Palms building manager Karen Castro have been very responsive to and concerned about Anderson's needs.

"When Ana came to the manager with concerns, she responded immediately," Saab-Tro said.

Castro ordered smoke-sensitivity tests, sent in a structural engineer, and even purchased special light bulbs for Anderson, said Saab-Tro.

The light bulbs diffuse the smell of smoke and cost a pricey $40 a piece, Saab-Tro said.

By the time Castro obtained the bulbs, Anderson had already moved out of her condo, Saab-Tro said.

"Ana is a lovely lady and we tried the best we could to help her," Saab-Tro said.

Contentious Issue

Marc Rodriguez, a property manager with Four Points Property Management in Hialeah, acknowledges that the smoking issue is contentious and a smoking ban may be the only solution.

While none of his clients are engaged in the dispute, Rodriguez said he has faced situations in the past where homeowners complained about smoke coming from nearby units through attics and vents.

"Fortunately, they were all resolved somewhat amicably among the homeowners or board," Rodriguez said. "However, in the future there may be situations that cannot be resolved so amicably and where a smoking ban may play a large roll."

This is relatively new territory for Miami attorney Patrick Russell.

"Wow, that could be a firestorm, pardon the pun," said Russell of Russell Law. "[I'm] not sure if there is a constitutional or protected right to smoke that could stop such a movement."

Condo associations traditionally have great latitude in regulation, but that might be taking it a bit far, Russell said.

"Where does it end? A future attempt to regulate the music or movies you listen to? How about the type of clothes it's members wear?" he asked.

Becker & Poliakoff attorney Kevin Edwards said that Florida's Supreme Court stated there is no constitutional right to smoke when it ruled that a government could refuse to hire smokers.

But the court's ruling in Kurtz v. City of North Miami, doesn't address smoking inside a private unit, he said.

So far, local attorneys can only point to Merrill v. Bosser, a 2005 Broward case that has come to be known as the Palm-Aire decision.

A condo owner was court-ordered to make improvements to his unit in order to prevent smoke from entering the apartment below, said Lisa Magill, an attorney in Becker & Poliakoff's Fort Lauderdale office, and editor of the firm's newsletter and blog.

"The upstairs owner frequently smoked on his balcony and it became a nuisance to the owner below," Magill said.

Nuisance, trespass and breach of the covenant of quiet enjoyment are arguments traditionally used against fellow tenants over noise.

They've been co-opted by anti-smoking activists.

Edwards said other states have upheld restrictions against smoking in a home and have awarded damages as a result of second-hand smoke, he said.

A California court decision prohibited an owner from smoking in his own garage because the smoke permeated into neighboring condo units, Edwards said.

Amending condo documents is all it would take to outlaw smoking in one's apartment, said Hollywood attorney Eric Glazer.

"I say this because in Woodside v. Jahren the Florida Supreme Court [stated that] from the outset, courts have recognized that condominium living is unique and involves a greater degree of restrictions upon the rights of the individual unit owners when compared to other property owners," Glazer said in an e-mail.

Competing Interests

Donna DiMaggio Berger, managing partner of Katzman Garfinkel and Berger, is also executive director of the Community Advocacy Network, which provides education, outreach and advocacy programs to community associations throughout the state.

"Naturally, there are competing interests at play," said Berger, who has blogged on the subject. Smokers are owners and enjoy the same real property rights as nonsmokers, she said.

Reiterating traditional arguments, Berger called unwelcome smoke a nuisance and health risk. She expects to see many more condo disputes and court cases in the immediate near future.

So do others. Especially since the New England Journal of Medicine published a June report calling for a complete smoking ban in any housing project receiving public money.

U.S. Housing and Urban Development has not required such draconian measures, but has the power to do so, according to the NEJM article.

If public housing enforces these changes, the private market may not be far behind.

How this would affect the already volatile real estate market is an issue now under discussion within Florida's condo community.

Magill said that community associations are all struggling to make ends meet.

"When boards are facing choices that involve paying FPL or for the waste removal contract this month, they are not filing actions against homeowners for violations of use restrictions," Magill said. "Associations are in some cases relaxing, and in others completely waiving, certain use restrictions to improve the desirability of the property in order to attract tenants or purchasers."

Naples real estate agent Michele Harrison said properties clear of smoke sell better but banning smoking might violate private property rights.

"I would not want to see that type of restriction put on a property owner," Harrison said.

There is a problem ridding the apartment of residual odor once the smoker moves out, she said.

"I have had prospects walk in a door and immediately out the door because they detect the smell in the home," Harrison said.

Anderson said she couldn't give her condo away in this market.

"I did put it up for rent. A new [tenant] moved in on Monday," said Anderson.

Source: The Daily Business Review, August 24, 2010
By I.M. Stackel